Guilmette v. Commonwealth
Guilmette v. Commonwealth
Opinion of the Court
Kenneth Guilmette appeals from the judgment of a single justice of this court denying his petition for relief, pursuant to G. L. c. 211, § 3. We affirm.
Guilmette was charged with resisting arrest in violation of G. L. c. 268, § 32B. Prior to trial, he moved to dismiss the complaint on the ground that he was entitled to a show cause hearing before issuance of a complaint. The trial judge denied the motion.
Prior to retrial, Guilmette filed in the District Court a second motion to dismiss the complaint that was essentially identical to the first motion. The judge denied the motion.
The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Guilmette has failed to meet his obligation under the rule to demonstrate why “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Id. He could have raised the issue in his first appeal to the Appeals Court, but did not do so. It may be that he is still able to press the point in a second appeal, if he is convicted after retrial.
Judgment affirmed.
Guilmette filed an earlier petition pursuant to G. L. c. 211, § 3, challenging the denial of his motion to dismiss. The first trial took place, however, before that petition was acted on.
The judge’s order notes, among other things, that Guilmette did not press the issue in his first appeal.
We express no view on whether Guilmette’s failure to challenge the denial of his motion to dismiss in his first appeal precludes him from doing so in a subsequent appeal from any conviction following retrial. See Commonwealth v. Kater, 432 Mass. 404, 411 (2000). The answer to that question is inconsequential to the result we reach.
Because of the unique nature of the protection against double jeopardy, we recognize a very limited exception to this rule where a criminal defendant “raises a double jeopardy claim of substantial merit.” Neverson v. Commonwealth, 406 Mass. 174, 175 (1989). But we have consistently declined to “extend this limited exception to other types of claims” that can be raised in a motion to dismiss. Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015 n.2 (2009), and cases cited.
Reference
- Full Case Name
- Kenneth Guilmette v. Commonwealth
- Status
- Published